PROPORTIONALITY, DOUBLE EFFECTS, AND THE INNOCENT BYSTANDER PROBLEM IN WAR.

• Author: Trumbull, Charles P.

1. INTRODUCTION 36 II. MORAL THEORIES OF INDIVIDUAL SELF-DEFENSE 40 A. Moral Culpability for Unjust Threat 42 B. Moral "Responsibility" for Unjust Threat 43 C. Unjust Threat 44 D. Innocent Bystanders 45 III. THE LAWS OF WAR 46 A. The Principle of Distinction 47 B. Proportionality 50 IV. MORAL JUSTIFICATIONS FOR THE PRINCIPLE OF PROPORTIONALITY 51 A. The Doctrine of Double Effect 52 B. Critiques of the DDE 54 1. Intentions Are Not Dispositive 55 2. The False Distinction Between Intention and Knowledge 56 3. Additional Concerns with the Principle of Proportionality 58 V. PROPORTIONALITY, RESPONSIBILITY, AND INNOCENCE 59 A. Civilian Immunity and Innocence 60 B. Individual and Collective Responsibility 63 1. Individual Responsibility and Civilians' Contributions to the War 63 2. Collective Responsibility 65 C. A Slippery Moral Slope 68 VI. A REVISED NARRATIVE OF THE PRINCIPLE OF PROPORTIONALITY 69 VII.CONCLUSION 72 I. INTRODUCTION

   U.S. forces have engaged in combat operations in at least six countries over the past decade: Afghanistan, Iraq, Syria, Yemen, Somalia, and Libya. According to the Department of Defense, in 2019 U.S. forces incidentally killed at least 132 civilians in these countries and injured at least 91.' The actual numbers are likely higher according to most experts. (2) Despite these casualties, the United States is not at war with any of these countries. The United States was not attacked by any of these states, and the civilians killed in these operations were not "enemy" civilians.

   The Department of Defense states that the military operations that caused these casualties were conducted in compliance with the laws of war--the framework commonly known as international humanitarian law (IHL). The Department emphasizes that U.S. forces "routinely conduct operations under policy standards that are more protective of civilians than is required by the law of war." (3) U.S. troops "protect civilians because it is the moral and ethical thing to do." (4) It appears morally uncontroversial to protect civilians, but what about the civilians killed in U.S. military operations? Is causing incidental harm to civilians, particularly in neutral or friendly countries, morally justified?

   These questions have particular import today as we reflect on two decades of inconclusive conflicts. The United States incurred enormous losses during these military interventions, in both casualties and financial expenses. The loss to local populations has been even higher, with tens of thousands of civilians dead or injured over the course of the wars against the Taliban, Al Qaeda, and the Islamic State. The Taliban takeover of Afghanistan, an ignominious end to America's longest war, and the ongoing instability in Iraq and Libya will certainly lead to further reevaluation of military intervention as an instrument of foreign policy. Our national shortcomings over the course of the war, including the torture at Abu Ghraib, the failure to close Guantanamo, the pardoning of war criminals, and tragic bombings of civilians, require further reflection on the ethics of how the United States and our allies wage war. (5) The atrocities committed by Russia in Ukraine make these questions of urgent international concern.

   Lawyers and moral philosophers have long struggled with the ethics of killing in war. Significant debate remains regarding who may justifiably be killed during armed conflict. The predominant justifications for killing in war are grounded in theories of self-defense. This is consistent with modern understandings of the legitimate aim of war, now limited to national or collective self-defense. Under the United Nations Charter, self-defense against an armed attack is the only legal basis for the resort to force (jus ad helium) against another state absent Security Council authorization. Once war has commenced, traditional notions of individual self-defense are widely viewed as providing the moral basis--or at least the perceived moral basis (6)--for individual combatants to kill or harm the enemy.

   Self-defense provides a justification for the use of lethal force, but it is an exceptional one. A central premise of all theories of individual self-defense is that all humans have a right to life. This means they have a right not to be attacked by other humans unless they forfeit that right. To relinquish her right not to be killed, a person must do something morally relevant that causes or poses a grave and unjust threat to another. We call such persons "non-innocent." (7) By contrast, individuals who have not forfeited their right to life are morally innocent.

   The right of soldiers to target enemy combatants seems like a straight-forward application of individual self-defense. Combatants may kill enemy combatants because they pose a serious threat as the agents of their sovereign in its use of military force. Certainly, not all combatants pose an unjust threat. For this reason, many moral philosophers argue that only soldiers from a victim state may permissibly act in selfdefense. Combatants from the aggressor state do not have a moral right to kill soldiers from the victim state since only one state may legitimately act in self-defense.

   Soldiers from the victim state do not forfeit their right to life because the threat they pose is not unjust. While this argument has significant theoretical merit, 1 mostly set it to one side in this Article. My primary concern is how a state fighting a just war may do so morally.

   It is more difficult to reconcile the incidental killing of civilians with the principles of individual self-defense. Civilians who have not forfeited their right to life are akin to "innocent bystanders" in moral philosophy. Most moral philosophers agree that it is morally prohibited to kill an innocent bystander, even where necessary to save one's own life. (8) Yet, the IHL principle of proportionality (PP), codified in the 1977 Additional Protocol to the Geneva Conventions, permits the incidental killing of civilians provided that the expected loss of civilian life is not excessive in relation to the military advantage anticipated. Under IHL, civilians cannot be directly targeted, but they may be lawfully killed as collateral damage. This Article attempts to reconcile this principle of IHL with the moral prohibition on killing innocent bystanders.

   The PP is commonly understood to be based on a theory of moral philosophy called the Doctrine of Double Effect (DDE). (9) Put simply, the DDE permits acts that have unintended consequences provided that the good intended by the act outweighs the unintended harm. The validity of the DDE, however, has come under serious attack in recent years in the philosophical literature. Many moral philosophers argue that it needs to be substantially revised or discarded. (10) Surprisingly, these philosophical critiques and their implications have not been seriously considered in the legal literature on the laws of war. The DDE generally remains the predominant moral justification for the PP and the collateral damage it permits.

   This Article, drawing from the literature on moral philosophy, argues that we should be deeply skeptical of the DDE as a moral rationale for the PP and the civilian harm it implicitly authorizes. Contrary to the DDE, the moral permissibility of an act should not depend on the subjective intentions of the attacker. The DDE's focus on the intentions of the attacker fails to account for the rights of the potential victims and can create inconsistent moral judgments for similar conduct. The DDE also presumes that intentions can be neatly compartmentalized and creates a false moral distinction between knowledge and intent. This Article argues that the objective facts of the situation, not the intentions on which one acts, justify an individual's actions. The permissibility of killing depends on the conduct of the enemy rather than the intentions of the attacker.

   In rejecting the DDE as the moral justification for the PP, 1 do not argue that all civilian casualties in war are morally prohibited. Civilians, like combatants, can be non-innocent by virtue of their responsibility for an unjust threat or contributions to the war-fighting effort. Morally, non-innocent civilians should not be entitled to greater protection than non-innocent combatants, other circumstances being equal.

   It is nevertheless important to distinguish between civilians and combatants, as the IHL principle of distinction docs by prohibiting direct attacks against civilians and civilian objects. Whereas the threat (or non-innocence) of combatants is readily identifiable, distinguishing innocent civilians from the non-innocent, as well as distinguishing varying degrees of non-innocence, is especially difficult in the fog of war. Basing civilian immunity on innocence would be unworkable on any large scale and thus subject to abuse, likely resulting in harm to civilians that would be entirely unjustified or disproportionate to their degree of non-innocence. The inability of states to assess individual innocence could lead to the unrestrained warfare witnessed throughout much of the twentieth century, in which states justified indiscriminate attacks and devastating economic blockades on the perceived culpability for or contribution to the war by the civilian population as a whole. IHL thus protects all civilians from direct attack, regardless of the degree of non-innocence of individual civilians.

   This Article seeks to present a different, and perhaps unorthodox, moral narrative of the PP in traditional armed conflicts." 1 argue that the PP itself is not a moral rule that will necessarily yield morally permissible outcomes. Attacks undertaken with the knowledge that innocent civilians will be killed cannot be morally justified, even if they may be lawful under the PP. Only principles of individual self-defense, rather than the DDE, can morally justify harm to civilians in war...